The third part of the reports of severall excellent cases of law, argued and adjudged in the courts of law at Westminster in the time of the late Queen Elizabeth, from the first, to the five and thirtieth year of her reign collected by a learned professor of the law, William Leonard ... ; with alphabetical tables of the names of the cases, and of the matters contained in the book.

CCXXIII. Barns Executor of the Bishop of Durham and Smith's Case. Mich. 29 Eliz. In the Exchequer.

EManuel Barns, Executor of Barns late Bishop of Durham,* 1.1 brought Debt for Arrearages of Rent reserved upon a Lease for years of certain Mines demised to Smith; scil. Mines called Argill, and Mines called Greenbourn; and it was against the Executors of Smith. The Defendant pleaded, as to parcel, Non detinet; and as to other parcel of the Arrears, That in the Inden∣ture of demise, there is a Covenant, Quod si contigerit, that the said Lessee impeditus fuerit quominus Mineris praedict. gaudere possit, That then so much of Rent should be deducted, amounting to the value of the Mines he could not enjoy, &c. And pleads in facto quod impeditus fuit, quo minus gaudere potuit Mineris praedictis, &c. And it was found for the Plaintiff. And it was moved by Cook in arrest of Iudgment, That here is not any place shewed, where these Mines were, so as Non constat from what place the Visne shall come: As if in an Action (as here) the Plaintiff De∣clares of a Lease made of Land called R. in such a County, the same is not good, Causa qua supra. The Issue here is Non potuit fodere in praedicta Minera de Greenbourn, by the space of 7 years

and a half. From whence shall the Visne come for the tryal of this? Not from Durham where the Lease was made, for there is no nearness between the place where the Lease was made, and this Issue: But if the Issue had been, That the Lessor had not any thing in the Mines tempore dimissionis, it might have been tryed where the Lease was made.

Another Exception was taken, because the Plea is, Quod non potuit fodere in 3, 4, 5, 6, 7, 8. dimidio 10 & 11. and that ap∣pears to be 7 years and a half; And the Iury find, Quod non po∣tuit fodere per spatium 7 annorum tantum, without speaking of the half year, and so they have not given a full Verdict.

As to the first Exception, It was said by Cook, If a thing be al∣ledged in pleading, which is Issuable, and there is not laid down any place of it, although that no Issue be joyned upon it; yet be∣cause he hath prevented the other of his Plea to it, Iudgment given in such case shall be reversed: And so it was Ruled between Mat∣thew and Stransham. So upon the Statute of Usury, the Infor∣mer charged the Defendant, For that by way of corrupt bargain, he had received so much, and did not shew the place, although that no Issue was joyned upon it, but they were at Issue upon another point; yet if Iudgment in such case be given, it shall be rever∣sed.

And in all Actions upon the Case, where request is necessary, and the Plaintiff ought to alledge it, the place of the Request ought to be shewed. And he said, That this Issue ought to be tryed where the Mines demised are, and here no place is alledged where the Mines are, but only in Com. Dunelmens. and yet a Visne of the City of Durham hath tryed this Issue, which ought not to be; but the Visne should come de Corpore Comitatus.

Clark, Baron, If Issue be joyned upon taking of the profits, it shall be tryed where the Land is, but non Debet or Detinet where the Lease was made: so, Ne lessa pas.

By Cook, The Issue is, Non potuit fodere, and that is local, therefore it shall be tryed where the Mines are.

Manwood, Non potuit fodere, non potuit gaudere, are not local; but non fodit, non gavisus fuit, is local, and shall be tryed where the Mines are. And here it is not shewed, how he was hindered to dig, &c. and the Issue is, de potentia & non de actu.

Tanfield, As to that which Cook hath said, That the Visne in this Case shall come de Corpore Comitatus; It is not so, for such Visne never shall be, but where the Issue is, No such Town, Hamlet or place known. Tanfield, In another Case, the Tryal shall be de Corpore Comitatus; As in False Imprisonment, The Defendant justifies, That the common voice and fame was, &c. there the Visne shall be de Corpore Comitatus, 11 E. 4. 4 & 5. And see also, 21 Eliz. the Case of Constantine and Gynne, (which see now Report∣ed by the Lord Cook, in Dowdell's Case) Cook 6. Part, 48. And as to the defect of the Verdict, upon the half year, the Record is not so,

for the Record is, Dimidio anni decimi, & undecimi, and so two half-years, make one whole year, and so but 7 years in which the disturbance is supposed to be done. And see as to the Visne de Cor∣pore Comitatus, 22 E. 4. 4. Fitz. Visne, 27.

Another Exception was taken, because the Declaration is, That the Lease was made at Durham in Comitatu Dunelm. and doth not say also in Setberg, for such is the name of the County Palatine. But as to that it was said, Every Writ of Execution which goes into the County Palatine, is directed Episcopo Dunelmens. & Can∣cellario suo, Quod det in mandatis Vicecom. suo, &c. And Dur∣ham was called Setberg in Ancient time, and the name of the Coun∣ty Palatine there is commonly called Dunelm. & Setberg; and their Pleas there are entred, Placita coram Justiciariis Dunelm. & Setberg, but the same is amongst themselves only, and all directi∣ons from hence to them are, Episcopo Dunelm. without any men∣tion of Setberg; and a President was shewed to the Court to such effect.

Manwood, Levied by Distress, and so nothing arrear, shall be tryed where the Lease is made.

Clark, That is true, For by the (So) the Plea before is waived. And see 8 H. 5. 10. Where an Issue is to be tryed in Lincoln, &c. or such a Town which is a Franchise, The Venire facias shall be of Lincoln, and not de Vicineto Lincoln; for then the Iury should be as well of the County adjoyning, as of Lincoln it self; which the Visne of Lincoln cannot do: But Venire facias de Suburbiis of Bristow, was awarded good.

And if in the Case at Bar, the Defendant had pleaded, That the Plaintiff had entred into part of the Mines, and so suspended his Rent, upon which they are at Issue, the some by Manwood, shall be tryed by a Iury de Corpore Comitatus: The Issue here is, If the Defendant might enjoy these Mines secundum veram in∣tentionem dimissionis praedict. and that is referred to the Demise which was made at Durham, and therefore this Issue may be well tryed there. And afterwards at another day, It was holden, That all the Issues are Jeofails. But as to the want of the place, the same was holden a material Exception. See the Case of Mines, Plow. Com. 337. Exception was taken to the Information, because it was not laid down there, in what Town or Hamlet Newlands lay. And it was holden, The same had been a material Exception, if the Defendant had not demurred upon the Information; in which case, no Tryal by Iury is to be, &c. And he said, Misnosmer shall be tryed, where the Writ is brought, &c. so never admini∣stred as Executors, &c.

Manwood, Here the Lease is laid to be made at Durham in a place certain. If then there be not any other local thing laid which may draw the Tryal elsewhere, it shall be tryed at Durham where the Lease is made. An Enfant makes a Lease for years, rendring Rent, and afterwards re-enters, and avoids his Lease by reason

of his Nonage, and title is found against him by that Lease, upon which he pleads Nonage, it shall be tryed where the Lease is made, &c. And afterwards, Iudgment was given for the Plaintiff.

Notes

• * 1.1

  2 Len. 21.